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Court Wins

CCK Wins Precedential Decision: Increased Rating for Right Knee Condition

Bradley Hennings

November 29, 2018

Updated: November 20, 2023

Court Win - Increased Rating IVDS

Summary of the Case

The Veteran served in the United States Army form June of 1976 to June of 1979, and again from February of 1991 to October of 1991.  In March of 2008, he was granted service connection for patellofemoral syndrome of the right knee at a 10 percent disability rating effective January 2008.  The regional office assigned the 10 percent rating based on the range of motion and flexion of the Veteran’s right knee.  However, the Veteran continuously appealed this decision, as there are three diagnostic codes that could potentially lead to an initial rating higher than 10 percent.  Specifically, diagnostic code 5257 could entitle the veteran to a separate rating for lateral instability of the knee, which the Veteran reported on multiple occasions.  Eventually, the Veteran was denied by the Board in May of 2017 and the following appeal ensued.

Board denies an increased rating for the Veteran’s right knee condition

In May of 2017, the Board issued a decision denying an increased rating for the Veteran’s right knee condition for the time period of 2008 through 2010.  In its decision, the Board determined that the evidence of record did not support an increased rating under diagnostic codes 5260, 5261, or 5257.  Specifically, in regards to a separate rating for lateral instability under diagnostic code 5257, the Board placed an emphasis on the objective medical evidence.  In doing so, the Board discounted the lay evidence of record in which the Veteran consistently reported during multiple VA examinations that he experienced right knee instability.

CCK appeals to the Court

CCK successfully appealed to the Court of Appeals for Veterans Claims the Board decision that denied an increased rating for the Veteran’s right knee condition.  CCK argued that the Board misinterpreted diagnostic code 5257 when it denied a separate rating for instability based on a lack of objective medical evidence.  Furthermore, the Board did not explain why it placed an emphasis on the medical evidence of record as opposed to the Veteran’s lay statements, nor did it explain what it meant to put an emphasis on one type of evidence.  Additionally, CCK asserted that the Board failed to fully consider functional loss when it only focused on the Veteran’s pain and no other functional loss factors such as flareups, weakened movement, excess fatigability, and incoordination.

CAVC agrees with CCK’s Arguments

CCK argued, and the Court agreed, that the Board erroneously required objective medical evidence of instability to warrant a rating under diagnostic code 5257.  Specifically, diagnostic code 5257 does not speak to the type of evidence required, and thus, objective medical evidence is not necessary to establish lateral knee instability.  The Court affirmed that the Board cannot categorically find objective medical evidence more probative than lay evidence with respect to this diagnostic code without supporting its conclusion with an adequate statement of reasons or bases.  Moreover, the Court held that there is nothing in the Board’s discussion to suggest that it assessed the functional loss the Veteran experienced during flareups or whether the Veteran’s functional loss resulted in limitation of motion equivalent to the next higher rating.  Accordingly, the Court remanded the issue of an increased rating for the Veteran’s right knee condition for the Board to render a decision under the correct legal standards and provide an adequate statement of reasons and bases concerning diagnostic code 5257.



About the Author

Bio photo of Bradley Hennings

Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.

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